Collection of Decedents’ DebtS in Wisconsin
a loved one dies, family and friends may be contacted by creditors or debt
collectors seeking payment on decedents’ debts. In general terms, a “decedent” is a person who died and left
debts and/or property. The decedent’s
spouse or estate may be liable for the debt.
Wisconsin, most debt incurred during the marriage on behalf of the marriage or
family is considered a marital obligation.
This means that most spouses are liable for the debts of their spouses,
even if the spouse dies. These are
complicated laws, though, so you should check any contracts your deceased
spouse had with the creditor and confer with a lawyer who specializes in this
area to determine if a spouse is liable.
If you have a pre-marital agreement or believe the debt was not incurred
on behalf of the marriage or family, you should try and get legal assistance.
Stat. § 766.55 – Obligation of spouses
After the death of a spouse, property is available for satisfaction of
obligations as provided in § 859.18
Stat. § 859.18 – Satisfaction of obligations at death of a spouse
Family and Friends
creditors and debt collectors may contact other surviving family members, such
as parents or children, or friends, such as roommates, and ask them to
voluntarily pay for the decedent’s debt or tell them they are liable for the
debts. If the decedent is not your
spouse and if you did not co-sign a contract, you are not liable for a
debt. Even if you received the life insurance
proceeds from the death of the decedent, you are not liable. The proceeds from life insurance were never
actually the property of the decedent, so the proceeds are your property
creditors and debt collectors can contact you if you are a representative of a
formal estate that is going through probate court. If you are unsure what to do, you should contact the probate
attorney who is handling the case. Some
family members get letters addressed to “The Estate of the” decedent. If you are not a representative of a formal
estate and there is no formal estate, you do not have an obligation to reply to
the letter. If you are not a representative
but there is a representative of the estate, give the letter to the actual
you are not the spouse, co-signor, estate representative or otherwise liable
for the debt, debt collectors should not be contacting you regarding another’s
debt. You are a third party, who, under
consumer rights laws, cannot be notified of another person’s debt. A decedent’s estate can pursue action
against a creditor or debt collector for contacting you. You may be able to pursue action against
them if they are harassing you in any way in regards to the debt or threatening
to sue you for the decedent’s debt.
a debt collector fail to comply with consumer laws, that collector is liable
for any actual damages sustained, together with reasonable attorney's
fees. If you have been subject to
illegal behavior by a debt collection agency, you should contact a private
consumer attorney who may be able to obtain his or her fee from the creditor or
collection agency. Look at the ads in
the yellow pages under "Consumer Law Attorneys." Look for ads indicating no charge for
initial consultation. Also, you can
obtain the name of a consumer attorney from the State Bar Lawyer Referral and
Information Service at (608) 257-4666 (in Dane County) or (800) 362-9082
you are low-income and have a consumer claim, Legal Action of Wisconsin, Inc.
may be able to assist you. However,
because your attorney fees may be payable by the creditor or debt collector if
ordered by a court, you should consult a private consumer attorney first before
seeking legal representation at Legal Action.
addition, you can file a complaint with the state agency that regulates the
creditor or debt collector. These
agencies will try and work out the disagreement and hopefully get the creditor
or debt collector to stop contacting you regarding the debt. In addition, the agencies track complaints
to make sure that creditors and licensed debt collectors are following the
law. If you have a problem with a creditor, you can file a complaint with
the Wisconsin Department of Agriculture, Trade and Consumer Protection
(DATCP). The DATCP can be reached at
(800) 422-7128 or (608) 224-4960. If
you have a problem with a debt collector
(company that is not the original creditor), you can file a complaint with the
Wisconsin Department of Financial Institutions (DFI). The DFI can be reached at (800) 452-3328 or (608) 264-7969.
Violation of Wis.
Stat. § 427.014(1):
o (e) Disclose or threaten to disclose to a
person other than the customer or the customer's spouse information affecting
the customer's reputation, whether or not for credit worthiness, with knowledge
or reason to know that the other person does not have a legitimate business
need for the information, but this paragraph does not prohibit the disclosure
to another person of information permitted to be disclosed to that person by
FDCPA § 805:
o (b) COMMUNICATION WITH THIRD PARTIES. Except as provided in section 804, without
the prior consent of the consumer given directly to the debt collector, or the
express permission of a court of competent jurisdiction, or as reasonably
necessary to effectuate a postjudgment judicial remedy, a debt collector may
not communicate, in connection with the collection of any debt, with any person
other than a consumer, his attorney, a consumer reporting agency if otherwise
permitted by law, the creditor, the attorney of the creditor, or the attorney
of the debt collector.
Claims of relative or person contacted by dc:
Violation of Wis.
Stat. § 427.014(1):
o (g) Communicate with the customer or a
person related to the customer with such frequency or at such unusual hours or
in such a manner as can reasonably be expected to threaten or harass the
customer (continue to call regarding debt if upsetting person)
o (h) Engage in other conduct which can
reasonably be expected to threaten or harass the customer or a person related
to the customer (continue to call)
o (j) Claim, or attempt or threaten to enforce
a right with knowledge or reason to know that the right does not exist (claim
suit against person for decedent’s account)
o (L) Threaten action against the customer
unless like action is taken in regular course or is intended with respect to
the particular debt (claim suit against person for decedent’s account)
FDCPA § 806: A debt collector may not engage in any conduct the natural
consequence of which is to harass, oppress, or abuse any person in connection
with the collection of a debt. Without limiting the general application of the
foregoing, the following conduct is a violation of this section:
o (5) Causing a telephone to ring or engaging
any person in telephone conversation repeatedly or continuously with intent to
annoy, abuse, or harass any person at the called number. (calling and harassing
Violation of FDCPA
§ 807: A debt collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of any debt. Without
limiting the general application of the foregoing, the following conduct is a
violation of this section:
o (5) The threat to take any action that
cannot legally be taken or that is not intended to be taken. (threatening to
The above is intended to
provide general information only and is not a substitute for thorough and
specific advice on an individual case.
Depending on the complexity of your legal problem, you may need to
consult an attorney for advice or representation.
This was prepared by the staff
of Legal Action of Wisconsin, Inc. on behalf of low-income clients and was
funded by the Legal Services Corporation, Washington, D.C., 20005. Any opinions contained herein are those of
the authors and should not be construed as those of the Legal Services
Legal Action of Wisconsin,
Inc. does not discriminate on the basis of disability in the provision of
services or in employment. If you need
printed material interpreted or in a different form, or if you need assistance
in using our services, please inform us.
Deaf, hearing-impaired, or speech-impaired callers may reach us through
the Wisconsin Telecommunication Relay System (711 or 1-800-947-3529).
8 Legal Action of Wisconsin, Inc.